Employment Law Half-Day Seminar

Transcription

1 Employment Law Half-Day Seminar This notebook is a publication of Miller Nash LLP. It is provided for informational purposes only and does not constitute legal advice or legal opinion about specific situations. Scan to learn more about our Employment Law & Labor Relations Practice Readers are urged to consult with legal counsel concerning their own specific facts and circumstances and any specific legal questions. For further information about the contents of this notebook, please contact Miller Nash Client Services by at clientservices@ millernash.com or by phone at Copyright tel Employment Law for the Information Society October 25, 2011 Seattle, Washington November 1, 2011 Portland, Oregon

2 ADA ACCOMMODATIONS: NEW TECHNOLOGY, SAME FUNDAMENTAL QUESTIONS Jeff Chicoine and Adam Hughes TABLE OF CONTENTS Page I. THE BASICS... 1 A. When is an employer a covered employer?... 1 B. Is the covered employer's action involved?... 1 C. Does the individual have a disability requiring an accommodation?... 1 II. BEGINNING THE INTERACTIVE PROCESS... 2 A. Has the employee initiated the accommodation process?... 2 B. Is the employer aware of an impairment that substantially limits a major life activity that requires an accommodation even if the employee has not asked for an accommodation?... 3 C. Does the employer have medical documentation sufficient to document and understand the employee's limitation and abilities?... 3 D. What are the essential functions of the employee's job?... 4 III. INTERACTIVE PROCESS... 5 A. What are the employee's abilities and limitations?... 5 B. Can the employee perform the essential functions of the job without an accommodation?... 5 C. Are there marginal duties that the employee cannot perform without an accommodation?... 5 D. What are the potential accommodations?... 5 E. Has the employer engaged in the interactive process?... 6 F. Has the employer chosen a reasonable accommodation?... 7 IV. CONSIDERATIONS REGARDING CERTAIN ACCOMMODATIONS... 7 A. Is work at home appropriate?... 7 B. Is leave appropriate?... 8 C. If leave is appropriate: Must an employer hold open the employee's job?... 8 D. Must leave be for a definite or indefinite time?... 8 E. Is reassignment to another job appropriate? i-

3 TABLE OF CONTENTS (continued) Page V. TESTING THE EMPLOYER'S ACTIONS... 9 A. Has the employer acted in a good-faith and timely manner in responding to the request for accommodation?... 9 B. Does the accommodation violate the terms of a collective bargaining agreement or established seniority system? C. Did the accommodation work? D. Is the employer requiring medication or monitoring of medication as a reasonable accommodation? E. Is the employer requiring the employee to accept a reasonable accommodation? VI. OTHER FACTORS TO CONSIDER A. Does the appropriate accommodation impose an undue hardship on the employer? B. Is there a direct threat of harm to the employee or a coworker if the employee is allowed to work his or her position? C. Some practical assistance D. Reasonable-Accomodation Process Checklist..13 -ii-

4 ADA ACCOMMODATIONS: NEW TECHNOLOGY, SAME FUNDAMENTAL QUESTIONS Jeff Chicoine and Adam Hughes I. THE BASICS. A. When is an employer a covered employer? The Americans With Disabilities Act (the "ADA") covers employers with 15 or more employees. The Washington Law Against Discrimination applies to employers with eight or more employees. RCW (11). Oregon's disability discrimination law applies to employers with six or more employees. ORS 659A.106. As a result, most employers will be covered by both the ADA and state law and will be required to comply with both. These materials are directed only at ADA requirements for reasonable accommodation, but many of the same principles will apply to state-law analysis. 1 The ADA uses the term "covered entity" to include not only an employer, but also an "employment agency, labor organization, or joint labor-management committee." 42 U.S.C (2). B. Is the covered employer's action involved? According to the Equal Employment Opportunity Commission (the "EEOC"), there are three categories of reasonable accommodations: changes to a job application process; changes to the work environment, or to the way a job is usually done; changes that enable an employee with a disability to enjoy equal benefits and privileges of employment (such as access to training). 29 C.F.R (o)(1)(i)-(iii) (1997); EEOC, Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under the Americans With Disabilities Act ("EEOC Reasonable Accommodation Guidance"), "General Principles" section (Oct. 17, 2002). C. Does the individual have a disability requiring an accommodation? The ADA defines "disability" to include: 1 Regulations implementing and case law applying the federal ADA are generally followed when applying Oregon law. See ORS 659A.139 ("ORS 659A.112 to 659A.139 shall be construed to the extent possible in a manner that is consistent with any similar provisions of the federal Americans with Disabilities Act of 1990, as amended"), cited in Heiple v. Henderson, 229 Or. App. 693, 701, 215 P.3d 891, 895 (2009). 1

5 (A) a physical or mental impairment that substantially limits one or more major life activities of such individual; (B) a record of such an impairment, and (C) being regarded as having such an impairment (whether or not the impairment limits or is perceived to limit a major life activity). 42 U.S.C (1). An employer must provide reasonable accommodations if necessary to individuals with an actual impairment or a record of impairment; that is, categories (A) and (B). 29 C.F.R (e). There is no duty to provide reasonable accommodation to a person "regarded as" having an impairment: that is, in category (C). 42 U.S.C (h); 29 C.F.R (e) ("A covered entity... is not required to provide a reasonable accommodation to an individual who meets the definition of disability solely under the 'regarded as' prong."), amended by 76 Fed. Reg. 17,002 (Mar. 25, 2011). Also, for purposes of category (C), an individual meets the requirement of "being regarded as having such an impairment" whether the impairment limits or is perceived to limit a major life activity. But category (C) does not apply to impairments that are transitory and minor. A transitory impairment is an impairment with an actual or expected duration of six months or less. II. BEGINNING THE INTERACTIVE PROCESS. A. Has the employee initiated the accommodation process? The reasonable-accommodation process is initiated whenever a request for reasonable accommodation is made, orally or in writing, by an employee or applicant, or by someone acting on the individual's behalf. To request an accommodation, an individual may use plain language and need not mention the ADA or use the phrase "reasonable accommodation." EEOC Reasonable Accommodation Guidance, "Requesting Reasonable Accommodation" section, questions 1, 2, 3. Thus, in Brown v. Lucky Stores, Inc., 246 F.3d 1182 (9th Cir. 2001), the U.S. Court of Appeals for the Ninth Circuit observed that the "general rule" is that "an employee must make an initial request" for an accommodation. If the employee does not specifically say that he or she needs a "reasonable accommodation," the employer should first simply ask, "How can we help?" If there is a quick and easy way to provide the employee with assistance without getting into the ADA analysis, that is usually the best course of action. That said, if the assistance is not easy to provide, then the interactive accommodation process should begin. Either way, it is advisable to document oral requests for both simple assistance and reasonable accommodation to start to create a paper trail that will show that the employer has engaged with the employee in good faith at every step along the way. 2

6 B. Is the employer aware of an impairment that substantially limits a major life activity that requires an accommodation even if the employee has not asked for an accommodation? The EEOC and many federal courts conclude that the reasonable-accommodation process is also activated whenever an employee with a known physical or mental impairment is observed having difficulty performing the essential functions of his or her job because of the impairment. EEOC Reasonable Accommodation Guidance, "Other Reasonable Accommodation Issues" section, question 40. For example, in Stephenson v. United Airlines, No WL (9th Cir. 2001) (unpublished), the court held that the obligation is triggered "if the employer recognizes that an accommodation is necessary." There, the employee brought in a doctor's note with restrictions but never expressly requested accommodation. Washington State law follows this approach. For example, in Downey v. Crowley Marine Services, Inc., 236 F.3d 1019 (9th Cir. 2001), the Ninth Circuit recognized that the employee triggered the ADA's accommodation obligation by giving notice of a disability and desire for accommodation. But under Washington law, "simple notice of an employee's disability is sufficient to trigger an employer's responsibility to accommodate." C. Does the employer have medical documentation sufficient to document and understand the employee's limitation and abilities? When necessary, the employer should obtain medical information regarding the disability, the individual's functional limitations, and the need for reasonable accommodation. Based on all information provided, the employer will need to determine whether the employee is a qualified individual with a disability. The process for making this determination is discussed below. When the disability or the need for accommodation is not obvious, the employer may ask the individual for reasonable documentation about his or her disability and functional limitations. The employer is entitled to know that the individual has a covered disability for which he or she needs a reasonable accommodation. "Reasonable documentation" means only the documentation that is needed to establish that a person has an ADA disability, and that the disability necessitates a reasonable accommodation. Thus, an employer, in response to a request for reasonable accommodation, cannot ask for documentation that is unrelated to determining the existence of a disability and the necessity for an accommodation. This means that in most situations an employer cannot request a person's complete medical records because they are likely to contain information unrelated to the disability at issue and the need for accommodation. If an individual has more than one disability, an employer can request information pertaining only to the disability that requires a reasonable accommodation. EEOC Reasonable Accommodation Guidance, "Requesting Reasonable Accommodation" section, question 6. Any request for information from an employee's healthcare provider should also contain the following (or similar) "safe harbor" language to ensure compliance with the Genetic Information Nondiscrimination Act of 2008 ("GINA"): 3

7 The Genetic Information Nondiscrimination Act of 2008 (GINA) prohibits employers and other entities covered by GINA Title II from requesting or requiring genetic information of an individual or family member of the individual, except as specifically allowed by this law. To comply with this law, we are asking that you not provide any genetic information when responding to this request for medical information. "Genetic information" as defined by GINA, includes an individual's family medical history, the results of an individual's or family member's genetic tests, the fact that an individual or an individual's family member sought or received genetic services, and genetic information of a fetus carried by an individual or an individual's family member or an embryo lawfully held by an individual or family member receiving assistive reproductive services. 29 C.F.R (a)(1)(i)(B). D. What are the essential functions of the employee's job? An employer need only modify marginal job duties. Essential job duties never need to be modified. Essential functions are fundamental job duties of the employment position that the individual with a disability holds or desires and are exclusive of the marginal functions of the position. Essential functions of the job should be determined on a case-by-case basis. The essential functions of the job should be set out in a job description. If the employer does not have one at the time the request for an accommodation is made, it is often useful to prepare. Regardless of whether the job description is prepared beforehand or after the request, the employee may challenge the employer's determination as to what is an essential function of the job. Changing essential duties: If the employer changes the essential duties, the employer may be stuck with the change. See Brown v. City of Tucson, 336 F.3d 1181 (9th Cir. 2003). There, the court held that "the Department's apparent willingness to allow [a detective] to avoid night-time call-out [indicates] that it was not an essential function." If an employer does make temporary changes to essential duties, the employer should document that the change is a temporary modification, document the essential nature of the modified duty, and keep that essential duty in any evaluation of the job or performance appraisal of the employee. Light-duty jobs: The EEOC has concluded that light-duty jobs, if provided, must be made available to disabled persons suffering from off-the-job problems and not limited to employees recovering from on-the-job injuries. EEOC Reasonable Accommodation Guidance, "Workers' Compensation" and the ADA section, question 28. Yet not all courts agree. For example, in Watson v. Lithonia Lighting, 304 F.3d 749 (7th Cir. 2002), the court held that the ADA does not require indefinite light-duty positions. There, the employer maintained a pool of light-duty positions for workers recovering from temporary injuries. The court concluded that setting aside light-duty positions indefinitely would close the pool to employees recovering from temporary injuries. There are also many other policy considerations relating to 4

8 the workers' compensation system at the state level that have not been addressed by Washington or Oregon courts, and it is unclear how those courts would rule on the issue. III. INTERACTIVE PROCESS. A. What are the employee's abilities and limitations? The individual is usually best able to say what he or she is able to do. The employer should discuss the job with the individual, his or her supervisor and other management personnel as necessary to determine the employee's abilities. B. Can the employee perform the essential functions of the job without an accommodation? The employer should determine whether the individual can perform the essential job functions. If not, the employer should determine whether accommodations can be made to enable the individual to safely perform these functions. An employer does not have to eliminate an essential function, i.e., a fundamental duty of the position. This is because a person with a disability who is unable to perform the essential functions, with or without reasonable accommodation, is not a 'qualified' individual with a disability within the meaning of the ADA. Nor is an employer required to lower production standards whether qualitative or quantitative that are applied uniformly to employees with and without disabilities. "However, an employer may have to provide reasonable accommodation to enable an employee with a disability to meet the production standard." EEOC Reasonable Accommodation Guidance, "General Principles" section. For example, in Eshaya v. Boeing Co., No WL (9th Cir. 2004) (unpublished), the Ninth Circuit held that a flight mechanic's cargo bay responsibilities were an essential part of his work and did not have to be reallocated to other employees in the same department. While an employer is not required to eliminate an essential function or lower a production standard, it may do so if it wishes. EEOC Reasonable Accommodations Guidance, "General Principles" section. C. Are there marginal duties that the employee cannot perform without an accommodation? If an employee cannot perform marginal duties, an employer must provide an accommodation to allow the employee to perform the marginal duties or restructure the job so that the disabled employee does not have to perform them. Restructuring includes reallocating or distributing the marginal functions or altering when and how the functions are performed. 42 U.S.C (9)(B); 29 C.F.R (o)(2)(ii) app. D. What are the potential accommodations? Other forms of reasonable accommodation may include, but are not limited to: 5

9 Making existing facilities used by employees readily accessible to and usable by persons with disabilities; Acquiring or modifying equipment, tools, or devices; Job restructuring, modifying work schedules, or providing for work at home; Adjusting or modifying examinations, training materials, or policies, and providing qualified readers or interpreters; Leave; and Reassignment to a vacant position. E. Has the employer engaged in the interactive process? Has the employer: Involved the employee in discussions regarding: o His or her limitations and abilities; o The job's requirements; o Possible accommodations; Consulted with appropriate medical providers; Obtained information for the supervisor and other management persons with knowledge and responsibilities about the position and job tasks; Consulted a vocational rehabilitation counselor or other professional personnel retained by the employee; and Shared the information obtained with the employee? In Barnett v. U.S. Air, Inc., 228 F.3d 1105 (9th Cir. 2000), vacated on other grounds, 535 U.S. 391 (2002), the Ninth Circuit described the interactive process to include: "analyz[ing] job functions to establish the essential and nonessential job tasks" "identify[ing] the barriers to job performance [by] consult[ing] and cooperate[ing] with disabled employees so that both parties discover the precise limitations and the types of accommodations which would be most effective. "evaluation of proposed accommodations requir[ing] further dialogue and an assessment of the effectiveness of each accommodation, in terms of enabling the employee to successfully perform the job." 6

10 See also 29 C.F.R. Pt. 1630, App F. Has the employer chosen a reasonable accommodation? "The employer providing the accommodation has the ultimate discretion to choose between effective accommodations, and may choose the less expensive accommodation or the accommodation that is easier for it to provide." 29 C.F.R app. For example, in Connolly v. Entex Information Services, Inc., No , 2001 WL (9th Cir. 2001), the employer satisfied its duty to accommodate even though the employee was denied reassignment to a preferred job. Rather, the employer offered the employee a job he had previously performed satisfactorily, which the employee refused. The employer should consider the individual's preferences, the effectiveness of each accommodation, and related costs. The accommodation most appropriate for both employer and employee should be selected. The selected accommodation need not be the best or most expensive, or even the employee's preferred accommodation. If the accommodation is reasonable and enables the employee to perform the essential functions, the accommodation is acceptable. IV. CONSIDERATIONS REGARDING CERTAIN ACCOMMODATIONS. A. Is work at home appropriate? For purposes of a reasonable-accommodation analysis, the employer should consider whether the location of work performed is just another workplace policy that one may have to modify for certain jobs. To make this determination, courts consider workplace policies and practices related to work at home. For example, in Humphrey v. Memorial Hospitals Association, 239 F.3d 1128 (9th Cir. 2001), the Ninth Circuit required that an employee (a medical transcriber) be allowed to work at home because some other medical transcriptionists were permitted to do so. That the plaintiff failed to meet the employer's requirements for being permitted to work at home under normal circumstances was not sufficient to make such an accommodation unreasonable. On the other hand, in Mason v. Avaya Communications, Inc., 357 F.3d 1114 (10th Cir. 2004), the employer established that work at home was not a reasonable accommodation because attendance at the workplace for purposes of supervision and teamwork was an essential job function for a service coordinator with communications systems company. Consider EEOC Fact Sheet, "Work-at-Home/Telework as a Reasonable Accommodation" (modified Oct. 27, 2005), 7

11 B. Is leave appropriate? Unpaid leave may be a reasonable accommodation in certain circumstances: Nunes v. Wal-Mart Stores, Inc., 164 F.3d 1243 (9th Cir. 1999); and Humphrey v. Memorial Hospitals Association, 239 F.3d 1128 (9th Cir. 2001); 29 C.F.R (o) app. But unpaid leave may not be reasonable for a small employer, as in Epps v. City of Pine Lawn, 353 F.3d 588 (8th Cir. 2003), in which a six-month leave of absence was not required as a reasonable accommodation for a policeman with a small municipality. C. If leave is appropriate: Must an employer hold open the employee's job? According to EEOC guidance: An employee with a disability who is granted leave as a reasonable accommodation is entitled to return to his/her same position unless the employer demonstrates that holding open the position would impose an undue hardship. If an employer cannot hold a position open during the entire leave period without incurring undue hardship, the employer must consider whether it has a vacant, equivalent position for which the employee is qualified and to which the employee can be reassigned to continue his/her leave for a specific period of time and then, at the conclusion of the leave, can be returned to this new position. EEOC Reasonable Accommodation Guidance question 18. Consider Nunes v. Wal-Mart Stores, Inc., 164 F.3d 1243 (9th Cir. 1999), in which the court examined the company's benefits policy allowing employees to take up to one year of leave and its regular practice of hiring seasonal employees to fill positions. D. Must leave be for a definite or indefinite time? Another question regarding unpaid leave is whether an employer must hold the job open for an indefinite period. Humphrey v. Memorial Hospitals Association, 239 F.3d 1128 (9th Cir. 2001) (no right to repeated leaves "where there are plausible reasons to believe" that leave would not be effective, such as "the fact that a prior leave was granted and was unsuccessful"). Watson v. Lithonia Lighting, 304 F.3d 749 (7th Cir. 2002) (ADA does not require indefinite light-duty positions employer maintained pool of light-duty positions for workers recovering from temporary injuries; setting aside light-duty positions indefinitely would close the pool to employees recovering from temporary injuries). 8

12 E. Is reassignment to another job appropriate? In general, reassignment is considered when the employee cannot be accommodated in his or her current job, or if both the employer and the employee agree that reassignment is desired. See EEOC Enforcement Guidance: Workers' Compensation and the ADA 17 (Sept. 3, 1996); EEOC Reasonable Accommodation Guidance, "Reassignment" section. In Jenkins v. Cleco Power LLC, 487 F.3d 309 (5th Cir. 2007), the court noted that "when no reasonable accommodation can be made to the plaintiff's prior job, he may be transferred to another position." In reassignment, the employer should consider the following: Current employees only, not applicants, need to be considered for reassignment as an accommodation. See Bender v. Safeway Stores, Inc., No , 1997 WL (9th Cir. 1997); 29 CFR (2) (o) App. Vacancies only no obligation to bump another employee from a job. See Cassidy v. Detroit Edison Co., 138 F.3d 629 (6th Cir. 1998). No promotions as a reassignment. Employee must be qualified for the reassignment (with an accommodation if necessary). Training only if normally provided. No inferior positions when equivalent position is available: must be "equivalent" in duties, compensation, and benefits. Norville v. Staten Island University Hospital, 196 F.3d 89 (2d Cir. 1999). V. TESTING THE EMPLOYER'S ACTIONS. A. Has the employer acted in a good-faith and timely manner in responding to the request for accommodation? Under the 1991 Civil Rights Act, an employer may reduce liability for some compensatory and punitive damages when it "demonstrates good faith efforts, in consultation" with a disabled person, to "identify and make a reasonable accommodation." 42 U.S.C. 1981A. Some courts have also considered the employer's good faith in determining whether it engaged in an interactive process. For example, in Riley v. Weyerhaeuser Paper Co., 898 F. Supp. 324 (W.D.N.C. 1995), aff'd, 77 F.3d 470 (4 th Cir. 1996), the court considered all the employer's efforts to identify the employee's limitations and find a reasonable accommodation. 9

13 In all instances, requests for accommodation should be processed as promptly as possible given the facts and circumstances. If the requested accommodation is simple and straightforward, and no extenuating circumstances apply, the accommodation should be provided as soon as possible. B. Does the accommodation violate the terms of a collective bargaining agreement or established seniority system? In US Airways v. Barnett, 535 U.S. 391 (2002), the U.S. Supreme Court held that a disabled employee's rights under the ADA to reassignment to a vacant position were trumped by another employee's seniority rights to the same position because the seniority rights had been consistently and rigorously enforced. C. Did the accommodation work? While an employer can provide the accommodation of its choosing, it must still be effective, and the employer may be required to undertake more than one effort at accommodation. See Frisino v. Seattle School District, 160 Wa. App. 765, 249 P.3d 1044 (2011): "In cases where an objective standard is not available to measure whether an accommodation is effective, a good faith Goodman interactive process is especially important. During that process, the duty to accommodate is continuing. The employer may wish to test one mode of accommodation and then test another, if the first mode fails. Or, if the attempt to accommodate is not effective, one or more additional attempts may be undertaken. The statute does not limit the employer to only one attempt at accommodation, and we will not impose such a requirement. An employer's previously unsuccessful attempts at accommodation do not give rise to liability if the employer ultimately provides a reasonable accommodation." D. Is the employer requiring medication or monitoring of medication as a reasonable accommodation? An employer cannot force an employee to take medication or to get treatment as a reasonable accommodation. See Robertson v. Neuromedical Center, 161 F.3d 292 (5th Cir. 1998) ("the decision to take or not take medication" is a "personal decision" for the individual, not "an accommodation option" for the employer). The employer should enforce its performance policies in such a case, rather than monitoring the employee's medication use. In any case, monitoring medications would not be a reasonable accommodation. EEOC Enforcement Guidance on the ADA and Psychiatric Disabilities, question 28 (Mar. 25, 1997). E. Is the employer requiring the employee to accept a reasonable accommodation? "A qualified individual with a disability is not required to accept an accommodation... which such qualified individual chooses not to accept. However, if such individual rejects a reasonable accommodation... necessary to enable the individual to perform the essential functions of the position held or desired, and cannot, as a result of that rejection, 10

14 perform the essential functions of the position, the individual will not be considered a qualified individual with a disability." 29 C.F.R VI. OTHER FACTORS TO CONSIDER. A. Does the appropriate accommodation impose an undue hardship on the employer? Some key points about undue hardship: Burden is on the employer to provide credible evidence of undue hardship; such evidence should include a careful analysis of the hardship. Every request for reasonable accommodation should be evaluated separately to determine whether it would impose an undue hardship, taking into account: o o o The nature and cost of the accommodation needed; The overall financial resources of the business, the number of persons employed by the business, and the effect on expenses and resources of the business; and The impact of the accommodation on the business. 42 U.S.C (10); 29 C.F.R (p). If cost is an undue hardship, courts consider the employer's costs, not the employee's salary, position, or status within the company. EEOC Reasonable Accommodation Guidance, question 45. The cost of a reasonable accommodation will likely be compared to other costs paid by the company unrelated to the employee. If the modification has been made for other employees, it will be hard to argue that the same accommodation for the disabled employee will impose an undue hardship on the employer. See Smith v. Henderson, 376 F.3d 529 (6th Cir. 2004). B. Is there a direct threat of harm to the employee or a coworker if the employee is allowed to work his or her position? An employer need not adopt an accommodation that poses a direct threat of harm to the employee or coworkers. According to the EEOC, "Direct Threat means a significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation." 29 C.F.R (r). The EEOC considers whether an individual would pose a direct threat by using the following factors: (1) The duration of the risk; 11

15 (2) The nature and severity of the potential harm; (3) The likelihood that the potential harm will occur; and (4) The imminence of the potential harm. Id. C. Some practical assistance. Assistance on developing accommodations can be obtained through the federal government-funded Job Accommodation Network ("JAN"). This is a free service for employers and individuals. JAN counselors search for workplace accommodations based on a job's functional requirements, the functional limitations of the individual, environmental factors, and other pertinent information ; 12

16 Reasonable-Accommodation Process Checklist 1. Maintain a consistent policy for all managers and supervisors to follow when they receive an accommodation request or observe the need for a possible accommodation. If at all possible, managers and supervisors should work with human resources personnel to assist in consistency. 2. Maintain a policy for employees to make them aware of what to do if they need to request assistance or an accommodation for a disability. The policy should provide the employees with the information they need with regard to whom to contact, and should make it clear that it is the employee's responsibility to request assistance or an accommodation. 3. If an employee asks for assistance in order to perform his or her job tasks, the employer should first determine whether the assistance can be provided easily. If it can, the employer should provide the assistance and stop there. The employer should not ask for any particulars about impairments or disabilities. Document the request and the assistance provided. 4. If an employee requests a reasonable accommodation for a disability, or is asking for assistance that is not so easily provided, the employer will need to begin the reasonable-accommodation process in earnest. If the employee's impairment is not readily apparent, the employer should ask the employee for documentation from his or her healthcare provider describing the employee's limitations and identifying each major life activity that is limited. If the employer needs to request the information directly from the healthcare provider itself, the employee should sign a medical release, and the employer should include the GINA "safe harbor" language in its request. 5. Keep all medical information received in a file that is separate from the employee's personnel file. 6. Determine the essential functions of the employee's job as set out in the job description. If necessary, an updated job description should be prepared to accurately reflect the current essential functions of the job. Unlike essential job functions, an accommodation may require that nonessential or marginal job functions be reassigned to other employees. 7. Determine whether or not an accommodation is possible that would allow the employee to perform the essential functions of his or her job without creating an undue hardship on the employer. Assistance on developing accommodations can be obtained through JAN. This is a free service for employers and individuals. JAN counselors search for workplace accommodations based on a job's functional requirements, the functional limitations of the individual, environmental factors, and other pertinent information ; 8. Discuss possible accommodations with the employee, his or her medical providers, his or her managers and supervisors, and possibly a vocational or rehabilitation counselor, as appropriate, to determine which effective options are available. Then one should be chosen and implemented promptly. 13

17 9. Communicate consistently with the employee and keep him or her informed. Letting too much time lapse without action or communication can be considered an ADA violation. If a is delay caused by special equipment needing to be delivered, or something along those lines, the employer may need to determine whether temporary interim measures are appropriate. Keeping the lines of communication open and active will also help to keep the experience positive for the employee, which will decrease the chance of litigation in the future. 10. Analyze union contract obligations if applicable with regard to possible reassignment or filling vacant positions, and determine whether a waiver might be necessary. 11. Keep doors open. Making one attempt at a reasonable accommodation may not end the employer's obligations. If the first accommodation does not work, the employer may need to resume the interactive process to determine whether an alternative accommodation would be effective. 12. In rare instances, the employer may need to determine whether the employee creates a "direct threat" to himself or others in the performance of the job tasks. The EEOC defines "direct threat" to mean "a significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation." If the employer believes that the employee involved creates such a threat, the employer should document that determination by identifying: (a) the risk caused by the employee's limitation, (b) the potential harm that could result, and (c) the medical or observable facts upon which the employer's risk analysis is based. 13. At all steps along the way, document, document, document. Consistently document all communications with the employee and make all efforts to identify and provide a reasonable accommodation. This is especially true for any accommodations that the employee refuses. The ADA reasonable-accommodation process is complex, and by its own terms requires every situation to be viewed on a case-by-case basis to determine the correct action by the employer. Accordingly, while the above checklist provides a framework to use when analyzing and dealing with accommodation issues, many issues will arise in which it is not clear what the employer should do. Those are the situations that lead to the most litigation, and in those situations the employer should therefore consult with a knowledgeable employment attorney to determine the best course of action in order to minimize its potential liability. 14